The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-01-11

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tending to the left about six and one-half
inches over the cartilage of the ribs on the
left side. A large portion of tie bowels was
protruding. The intestine was not pierced.
Witness dressed and stitched the wound,
which he considered had been inflicted few
hours previously with some sharp instru-
ment. He remained with the deceased until
s a. m. Death interviewed on October Goth,
up to which time the doctor visited him
every day, but did not anticipate his recov
cry. The cause of death was chromatic pere-
tonitis, or inflammation of the lining mem
brane of the abdomen, the result of the
wound, which was necessarily fatal. There
were no other wounds on deceased. He was
apparently about 90 years of age. 70 His
Honor: l think the blow must have been
struck from right to left.
Mr.. Dare then cross-examined the witness
in detail as to the nature of his treatment of
the deceased, etc.
Keolahoa wv deposed that she had been
living with deceased at the time of his death.
They were not married, but it was their in
tention to be married. She saw the accused
stab him with knife; was quite sure of Pa
ulo's identity, having known him several
years. The parties we're at the house of
native in the district; the house faced the
sea, and the crime was committed outside in
the front. Paulo and victim were facing one
another at the time. They were on the Hilo
side of the road and witness was on the
other side. Paulo and another man had
been fighting and the former having gone
outside, deceased followed and tried to pre-
vail with him not to fight any more. 1t was
then that Paulo stabbed him. Other per
sons who were there, some of them women,
remained in the house while this was going
on. Deceased said to witness Immediately
afterwards: 81 am CUT She could not say
what became of Paulo then, as she devoted
all her attention to the wounded man, who
went over to the corner of the house outside
and pulled his shirt off. Witness cried when
she saw the wound. 1t occurred on the
night of the 10th October, but she could not
say what time. The moon had risen. Wit
ness did not know what they were fighting
about. Paulo and the other men began 1t.
Mr.. Dare cross-examined the witness at
some length, going into the minutest details,
and testing the credibility of her statements
The Court adjourned at p. M, the jury
being locked up for the night. Before they
retired His Honor charged them not to dis
cuss the case among themselves. The cross
examination of the female witness will be
resumed at 8 o'clock this morning.
THURSDAY, January 6.
The witness Keolahoa (w), whose Cross
examination by counsel for the defense was
not completed the previous evening, was
again placed upon the stand, but, without
proceeding, Mr.. Dare moved for the dis
charge of the prisoner on tie ground that
he was not legally before the Court, which
had never obtained jurisdiction over him on
the charge of MURDER that he had not been
committed for murder; that at the time of
his arrest he was not charged with murder,
but was charged with a violation of sections
5 and z, chapter Z, of the Penal Code of this
Kingdomi also, upon the grounds that at the
preliminary examination he was charged on
the 23d of October, 1886, with the crime of
manslaugnter, contrary to the provisions of
the said sections: that the official transcript
of the proceedings at the original trial was
headed, "The King VS.. Paulo, manslaugh-
ter" that the defendant, Paulo, appeared
before His Honor Mr.. Justice McCully at the
Third Judicial Circuit Court in the Hamakua
district in November, and that at that time
there was change of venue asked by the pres
ent Attorney General, who was then acting as
deputy under Mr.. Aholo; that that motion
was consented to by Mr.. Kinney, counsel for
the defense; that the change of venue was
made by reason of such motion and consent;
that the change of venue was on the charge
of granddaughter from Hamakua to Homo
lulu, and that the change of venue having
been made upon the charge of manSaughter.
Juere never had been any official charge of
murder, and that therefore the defendant
was not now legally before this Court on
that charge; that the Acknowledgement of
his Own right had no power to charge this
man with murder except upon the authority
of the lesser officials, considering that he was
not charged with murder in the first instance;
that there was no power in the legal or in
the judicial department to increase the mag
nitude of a charge after commitment; that
the defendant was held upon the charge OF
manslaughter, afterwards being arraigned
upon the more serious charge of murder
upon the mere volition of the AttOrney-Gen-
eral. The reason why this motion was not
brought forward earlier was that the indict
ment was made IN the Hawaiian language,
which he (Mr. Dare) did not understand.
Attorney-Gen Rosa instanced the par
allel case of man being charged with house
breaking and committed on that charge. If !
it should afterwards be found that the cir
cumstances would not warrant it he might |
then be charged with larceny. In the case
now before the Court the defendant might !
have been charged with lnanslaughter and |
committed for that, but the Court now had |
to consider the charge upon which he was |
arraigned-murder. 1t was within the pro-
vince of the Attorney General to present an |
Indictment to the Court after commitment, |
provided it were within the scope of the COM |
This was the main ground upon |
which he relied. The man had pleaded to |
the charge of murder, and he (Mr. Rosa) |
Cld1uSu Luhb uS WAS DOuuu ny Ills plea
Mr.. Dare, in answer to this, said that the |
rules which held good in minor cases could
not be applied to the more serious one which |
now had to be considered. 1t was very
different matter when a man was charged |
with a crime the penalty for which was ten
years penal servitude, and them alter it to
one to which the death penalty attached.
The charge of manslauehter in the several
degrees and that of assault were embraced
in the charge of murder, but murder was not
in manslaughter. 1t would be
competent for the Attorney General to
change the charge from murder to man
slaughter, or from manslaughter in the first
to the second degree, but he could not pre-
sent a bill of Indictment for murder when
the man was originally committed for man
slaughter. M. Dare contended that the
Court could not look behind the indictment
Mr.. Justice McCully obtained no more juris-
1iction over that man for murder than over
lim { Mr.. Dare). The change of venue to
Honolulu had been made for the convenience
Of the Attorney General, who could not be
heard as public accuser, and who had not the
power to accuse a man for greater crime
han that for which he had originally been
committed.
His Honor asked Mr.. Dare what he an